Citation Nr: 0802389
Decision Date: 01/23/08 Archive Date: 01/30/08
DOCKET NO. 05-26 223 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for human immunodeficiency
virus (HIV).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
E. I. Velez, Associate Counsel
INTRODUCTION
The veteran had active service from August 1971 to August
1974 and from May 1975 to June 1992.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of December 2002 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon.
FINDINGS OF FACT
Human Immunodeficiency virus was not manifested in service
and is not otherwise related to service.
CONCLUSION OF LAW
Human Immunodeficiency virus (HIV) was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. § 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2007), provides that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. To be consistent with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) a VCAA notice
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
supports the claim, or something to the effect that the
claimant should "submit any additional evidence that
supports your claim." This "fourth element" of the notice
requirement comes from the language of 38 C.F.R. §
3.159(b)(1).
The Board notes that in Mayfield v. Nicholson, 444 F. 3d.
1329 (2006), the Federal Circuit Court held that the VCAA
notice must be provided prior to the initial decision or
prior to readjudication, and such duty to notify cannot be
satisfied by post-decisional communications. The notice in
this case predated the rating decision.
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) the
Court held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103A and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim, including the degree of
disability and the effective date of an award. The timing
requirement enunciated in Pelegrini v. Principi, 18 Vet. App.
112 (2004), applies equally to all five elements of a service
connection claim. Id.
The Board finds that the VA's duties under the VCAA and the
implementing regulations have been fulfilled with respect to
the claim for service connection for HIV. In a VCAA letter
of June 2001 the appellant was provided adequate notice as to
the evidence needed to substantiate his claim. He was
informed of the evidence necessary to establish entitlement,
what evidence was to be provided by the appellant and what
evidence the VA would attempt to obtain on his behalf; it
also in essence told him to provide relevant information
which would include that in his possession. See generally
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
With regard to the requirement of notice with respect to the
degree of disability and the effective date of the award as
required by Dingess, supra, the veteran was not provided
notice until a letter of March 2006, however, the Board finds
that the appellant's claim is being denied, therefore there
can be no possibility of prejudice to the appellant even if
the appellant was not informed of the same in a timely
manner.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). In connection
with the current appeal VA outpatient treatment records and
private medical treatment records have been obtained. The
Board notes that not all of the veteran's service medical
records have been located. However, the RO made multiple
attempts to try and locate the service medical records from
both the National Personnel Records Center and the Records
Management Center. The service medical records from the
veteran's first period of active service and some of the
records form the veteran's second period of active service
have been associated with the claim file. In June 2005 a
formal finding of unavailability of service medical records
was issued. Therefore, the Board finds that the VA has
satisfied its duties to notify and to assist the claimant in
this case. No further assistance to the appellant with the
development of evidence is required. 38 U.S.C.A. §
5103A(a)(2); 38 C.F.R. § 3.159(d).
Legal Criteria and Analysis
Service medical records show that the veteran underwent
several surgical procedures on the mouth and right lower lip
between 1972 and 1974. No blood loss or transfusions were
noted during the surgeries.
Service medical records of July 1990 show that the veteran
underwent a cholecystectomy with incidental appendectomy.
The operation report did not indicate that the veteran
underwent a blood transfusion as a result of the surgery. A
fluid therapy record of July 1990 notes that no blood was
given in the operating room or in the recovery room.
VA outpatient treatment records of March 1998 show that the
veteran underwent a ventral hernia repair. Laboratory data
was noted to have been done on an outpatient basis and that
it was not with the regular record, however, it was noted the
veteran was perfectly all right to proceed with the surgery.
VA outpatient treatment records of May 2000 notes a diagnosis
of HIV. It was noted that the infective event was probably
in the 1980's and that he had only had two sex partners since
that time.
A VA examination report of May 2004 notes that the veteran
reported having undergone an emergency surgical procedure
while in Bahrain in 1986. He stated that he had developed an
incarcerated ventral hernia with evidence of severe
obstruction and bowel infraction. He stated the surgery took
place in a civilian hospital in Bahrain and that he received
three units of Bahrain blood. The veteran also reported
undergoing a surgery for an acute appendix in 1987 while
still on active duty, with a coincidental removal of the
gallbladder. He stated he had been told later that he bled
excessively and that he had been given transfused blood. He
was diagnosed with HIV infection with manifestations of AIDS.
The examiner noted that the veteran denied having ever used
IV drugs, denied being a homosexual or having substantial
risky sexual behavior. It was noted he did have two tattoos
he got while on active duty. The examiner opined that based
on the sequence of events that the veteran did have blood
transfusions both in the Middle East and in Bremerton,
Washington, prior to the time the HIV was universally tested
in transfused blood and that the transfused blood in Bahrain
was his most likely source of infection.
After a careful review of the evidence the Board finds that
the evidence is against a finding of service connection for
HIV.
The Board acknowledges that the VA examiner provided a nexus
opinion to service. As noted above, the examiner opined that
the veteran contracted HIV from blood transfusions in Bahrain
while he was in service. However, the Board notes that the
VA examiner's opinion is based on unsubstantiated and
unreliable history provided by the veteran and as such has
little probative value. See Black v. Brown, 5 Vet. App. 177
(1993); See also, LeShore v. Brown, 8 Vet. App. 406, 409
(1995) (holding that a bare transcription of a lay history is
not transformed into "competent medical evidence" merely
because the transcriber happens to be a medical
professional); Wood v. Derwinski, 1 Vet. App. 190, 191-192
(1991) (an opinion may be discounted if it materially relies
on a layperson's unsupported history as the premise for the
opinion). The examiner's opinion is based on the veteran's
accounts that he had a blood transfusion in a civilian
hospital in Bahrain while he was stationed there. However,
there is nothing in the record which shows that the veteran
underwent a blood transfusion while in Bahrain or at any
other time during his military service. At the VA
examination the veteran stated that he had a surgery for an
acute appendix and coincidental removal of the gallbladder at
the Bremerton Naval Hospital in 1987. However, service
medical records show that the surgery actually took place in
July 1990. Furthermore, operation reports and intravenous
therapy reports do not show that the veteran was given a
blood transfusion. Furthermore, the veteran reported that he
had a blood transfusion in Bahrain while undergoing a surgery
for a ventral hernia. However, there is no evidence which
supports the veteran's allegations. While the service
medical records from that time period are missing, the Board
notes that consistently, VA medical treatment records note a
history of prior plastic surgeries for the lip and a surgery
for gallbladder removal, but at no point is a surgery for a
ventral hernia repair is mentioned by the veteran until the
VA examination of 2004. In fact, the admission report
assessment for the gallbladder removal only mentions the
plastic surgeries. Similarly, an admission assessment report
of November 1990 lists under prior hospitalizations the
gallbladder removal surgery and appendectomy but no mention
of the surgery in Bahrain. The only mention of a ventral
hernia repair is in VA outpatient treatment records of March
1998 and these records are similarly silent for any history
of a prior ventral hernia repair. Therefore, the Board finds
the history provided by the veteran is not consistent with
the evidence and therefore is not credible. Because of the
lack of any corroborating evidence and lack of credibility,
the Board finds that the veteran's allegations have limited,
if any probative value. Consequently, the VA examiner's
opinion, which is based on the unsubstantiated history
provided by the veteran and which is inconsistent with the
other evidence of record, is accorded very little weight.
See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v.
Nicholson, 19 Vet. App. 427 (2006); Reonal v. Brown, 5 Vet.
App. 458 (1993).
The grant of service connection requires competent evidence
to establish a diagnosis and, as in this case, relate the
diagnosis to the veteran's service. The evidence of a link
between this disability and service is limited to the
veteran's assertions and a discredited medical opinion based
upon unreliable information. The veteran is a layperson, and
his own opinion regarding onset or cause is not competent.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
The preponderance of the evidence is against the claim and
the doctrine of reasonable doubt is not applicable. 38
U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1
Vet. App. 49, 53-56 (1990).
ORDER
Service connection for human immunodeficiency virus (HIV) is
denied.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs